Regulating Shipping in the Arctic Ocean: An Analysis of State Practice

The United Nations Convention on the Law of the Sea (LOSC) permits state parties to establish an Exclusive Economic Zone (EEZ) 200 nautical miles from their coast. Coastal states have exclusive jurisdiction over resources within the EEZ, but navigational and other high seas freedoms continue to exist. A significant number of states have, however, enacted legislation that departs from the LOSC, interfering with the navigational rights and freedoms of other states. This article analzses this development with a specific focus on the Arctic. It investigates the powers of Arctic coastal states to regulate shipping in the EEZ and thereby navigation in the Arctic Ocean. It adds to the existing literature by providing an analysis of state practice, suggesting that despite uncertainty concerning the interpretation of the LOSC Article 234 and the right to exercise legislative jurisdiction over ice-covered waters, a not insignificant number of states have claimed jurisdiction in their own EEZ beyond the rights granted in the LOSC, and are therefore not in a position to object to extensive jurisdictional claims in the Arctic.     

A Note on the M/V “Louisa” Case

In the M/V “Louisa” case of 28 May 2013, the International Tribunal for the Law of the Sea held that it had no jurisdiction, even though it had established prima facie jurisdiction at the provisional measures stage. The M/V “Louisa” case thus gives rise to questions regarding the relationship between prima facie jurisdiction and jurisdiction on the merits. Moreover, the M/V “Louisa” Judgment also sheds some light on the applicability of the doctrine of abuse of rights provided in Article 300 of the UN Convention on the Law of the Sea.     

Then and Now: Reappraising Freedom of the Seas in Modern Law of the Sea

The principle of freedom of the seas remains the governing paradigm of the high seas in modern law of the sea. Although the principle, as embraced by the UN Convention on the Law of the Sea (LOSC), is no longer an absolute norm, it continues to present fundamental challenges for achieving effective conservation on the high seas as it stands in direct contrast to the conservation duty imposed on states by LOSC. The recent UN General Assembly resolution calling for the adoption of a further Implementing Agreement under LOSC to address conservation on the high seas, highlights the need to build a new ethos for management of the high seas, which will require states to loosen their firm grip on the Grotian doctrine. This article seeks to contribute toward shifting attitudes in relation to the principle of freedom through an examination of the nature and scope of the principle in its historic context and in contemporary law of the sea.     

Port-State Jurisdiction,Extraterritoriality, and the Protection of Global Commons

Port-state jurisdiction has been used as a means of circumventing the inadequacies of enforcement on the high seas and of flag states’ ineffectiveness, but also the absence of international rules due to lack of consensus at the international level. Pressing and complex problems related to the global environment and global commons, such as depletion of fisheries, marine and atmosphere pollution, and climate change, and foot-dragging in the international community to effectively cooperate to tackle these problems have brought the concept of unilateral regulation of extraterritorial activities to the forefront. In this respect, the role of the port state, as a first point of contact for industries engaged in activities harmful to the global commons (i.e., fishing and shipping), is increasingly important. This article examines the scope and limits of port-state jurisdiction with respect to measures that may have an extraterritorial impact in the light of the law of the sea and international rules on jurisdiction. The aim of the article is to assess whether the practice of port states in exercising jurisdiction has contributed to developments regarding the exercise of (extraterritorial) jurisdiction as a regulatory tool for the protection of global commons. By identifying elements of current state practice regarding exercise of port-state jurisdiction, the article advances a framework for the most effective exercise of port-state jurisdiction for the protection of global commons with reference to the principle of common concern.     

Beyond the Four Corners of the Convention: Expanding the Scope of Jurisdiction of Law of the Sea Tribunals

In several recent Awards, Part XV tribunals constituted under the UN Convention on the Law of the Sea have been called upon to decide claims based on rights and obligations that find their source in a treaty, agreement, or otherwise binding instrument other than the Convention itself, or on customary international law. This article considers the extent to which such claims fall properly within the jurisdiction of a Part XV tribunal, either on the basis of the applicable law provision in Article 293(1) of the Convention, or on the basis of provisions of the Convention that make reference to other relevant rights and obligations.     

Challenges to the Primary Jurisdiction of Flag States Over Ships

With the increasing emergence of substandard ships sailing under the flag state's ineffective control and the growing number of accidents that negatively affect the marine environment and the maritime order, port states, coastal states, and international organizations have begun to develop new regimes to increase their control over ships. As a result, the authority of flag states is increasingly being challenged, seemingly calling into question the primary jurisdiction and control of flag states over their ships. The aim of this article is to promote a better understanding of the relationship between flag state, coastal state, and port state control.     

The Doctrine of Constructive Presence and the Arctic Sunrise Award (2015): The Emergence of the “Scheme Theory”

Abstract

The doctrine of constructive presence allows a coastal state to pursue and arrest a vessel on the high seas, even though that vessel may have never entered the state’s jurisdiction. This is because the vessel’s presence can be “constructed” inside the state’s jurisdiction when a connection can be found with other craft, suspected of having committed an illegal act there. This article explores the impact of the Tribunal’s decision in the Arctic Sunrise case (2015) on constructive presence. It shows that the necessary link between the vessels is now found when there exists evidence of participation in an illegal scheme.     

Lateral Organic Solar Cells with Self‐Assembled Semiconductor Nanowires

Solution‐processable organic semiconductor nanowires (NWs) offer a potentially powerful strategy for producing large‐area printed flexible devices. Here, the fabrication of lateral organic solar cells (LOSC) using solution‐processed organic NW blends on a flexible substrate to produce a power source for use in flexible integrated microelectronics is reported. A high photocarrier generation and an efficient charge sweep out are achieved by incorporating 1D self‐assembled poly(3‐hexylthiophene) NWs into the active layer, and an MoO₃ interfacial layer with high work function is introduced to increase the built‐in potential. These structures significantly increase the carrier diffusion/drift length and overall generated photocurrent in the channel. The utility of the LOSCs for high power source applications is demonstrated by using interdigitated electrode patterns that consist of multiple devices connected in parallel or in series. High photovoltage‐producing LOSC modules on plastic substrates for use in flexible optoelectronic devices are successfully fabricated. The LOSCs described here offer a new device architecture for use in highly flexible photoresponsive energy devices.     

Precluding the Applicability of Section 2 of Part XV of the Law of the Sea Convention

Part XV of the Law of the Sea Convention (LOSC or the Convention) affords priority to section 1 of Part XV over the compulsory procedures entailing binding decisions laid out in section 2. This article examines the jurisprudence that has arisen with respect to Articles 281–283 of section 1 of Part XV. Article 281 allows parties to the Convention by agreement between them to opt out of compulsory and binding dispute resolution. Article 282 is a choice of forum provision that allows parties to prefer binding dispute resolution under the terms of another agreement “or otherwise,” such as by way of optional declarations under the Statute of the International Court. Article 283 requires the parties to a dispute concerning the interpretation or application of the Convention to exchange views regarding the appropriate means of settling that dispute before triggering the compulsory procedures entailing binding decisions of section 2 of Part XV.     

Jurisdiction Over Underwater Cultural Heritage in the EEZ and on the Continental Shelf: A Perspective From the Practice of States Bordering the South China Sea

Abstract

The Chinese initiative of constructing the 21st Century Maritime Silk Road could be identified as a new chance to promote the protection of underwater cultural heritage (UCH) in the South China Sea. However, uncertainties concerning the jurisdictional issue over the UCH in the exclusive economic zone (EEZ) or on the continental shelf constitute an obstacle. The Convention on the Protection of Underwater Cultural Heritage has, to some extent, enlarged the coastal state’s jurisdiction. State practice differs on this issue. This article focuses on the domestic legislations of states bordering the South China Sea related to the jurisdiction over UCH found in their EEZ or on their continental shelf.     

国家管辖范围以外区域海洋生物多样性保护的新视域: 包括海洋保护区在内的划区管理工具

随着人类对海洋资源开发利用强度的增加, 海洋生物多样性的养护面临更大挑战。联合国大会决定在《联合国海洋法公约》框架下拟定一份新的法律文书, 以解决国家管辖范围以外区域海洋生物多样性(marine biological diversity of areas beyond national jurisdiction, BBNJ)的养护与可持续利用问题。包括海洋保护区在内的划区管理工具(area-based management tools (ABMTs), including marine protected areas (MPAs))是BBNJ国际文书谈判的一个重要议题。目前谈判尚处于早期阶段, 各国对ABMTs/MPAs缺乏共同的观点。本文通过分析ABMTs/MPAs的定义和内涵以及两者的异同点、目标、与现有相关法律文书、框架和机构的关系、一般原则和方法、现有框架以及面临的缺乏调查数据、缺失全球性法律框架以及缺少利益相关者参与等挑战, 提出需提高设立海洋保护区的科学性、建立有效的监测与执法机制以及加强国际合作等建议。     

Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction

This article assesses the scope and content of the automatic exceptions contained in Article 297 of the UN Convention on the Law of the Sea to the compulsory procedures established in Section 2 of Part XV. The Convention's drafting history is examined with a view to determining the validity of the diametrically opposed readings of Article 297(1) endorsed by Annex VII Tribunals in the Southern Bluefin Tuna Award and the Chagos Marine Protected Area (MPA) Award. The interpretation favoured in the Chagos MPA Award—that mandatory jurisdiction is not restricted to the three cases expressly enumerated in Article 297(1)—is consistent with the textual evolution of Part XV. The article situates the approach adopted by the Chagos Tribunal within a wider normative tradition, which holds that adjudicative jurisdiction arises in default of positive textual authorzsation (unless it has been explicitly excluded). It is argued that this approach should be embraced by courts and tribunals when interpreting the Convention's provisions, as it accords with the drafters' aspirations and it serves to strengthen the international Rule of Law.     

Research in troubled waters: U.S. research vessel clearance experience, 1972–1978

Abstract

The experience of U.S. institutions in obtaining permission to conduct oceanographic research in areas under foreign jurisdiction has been reviewed for the years 1972–1978. There were 441 clearance events identified involving 68 countries. Seven percent of the requests were denied and 21 percent were subject to inordinate delays. The incidence of denials has increased during the last few years. Reasons given for denials related to insufficient advance notice, inadequate arrangements, unacceptable conditions, or disputed jurisdiction. Provisions of the Draft Convention for the Law of the Sea may alleviate some of these problems.     

我国深海微生物资源研发现状、挑战与对策

深海具有多种复杂独特的生境,蕴藏着极为丰富的物种多样性,被公认为未来重要的基因资源来源地,具有巨大的应用开发潜力。目前,深海微生物资源已成为国家重要的战略资源储备,也是各国海洋战略的核心关注点。预计在未来20年内,深海微生物资源将在多个领域得到产业化应用。我国在历时近二十年的深海微生物资源采探中,已分离鉴定并规范保藏大洋来源的菌株9 376株,分属于1 443个种444个属,实现了一定的资源积累,并快速提升了知识产权拥有量。但是,随着深海微生物资源获取和开发活动的快速发展,联合国大会"养护和可持续利用国家管辖范围以外海域的生物多样性"谈判进程趋紧,我国深海微生物资源领域依然存在采样区域较为局限、绝大多数微生物难以培养、资源量有待扩容、产业化推进机制缺失、知识产权占有量不足等问题。因此,本文认为应从加强政策引导、强化资源库的基础建设、建立产学研一体化机制、增强国际合作几个方面入手,实现我国深海生物资源产业由"跟跑者"到"领跑者"的跨越。     

The Issue of Jurisdiction Over Mixed Disputes in the Chagos Marine Protection Area Arbitration and Beyond

The real issue in the Chagos Marine Protection Area Arbitration should have been the dispute concerning the Lancaster House Undertakings, over which the Arbitral Tribunal had no jurisdiction. The UNCLOS has no express provision respecting the jurisdiction over mixed disputes—disputes involving territorial sovereignty and maritime boundary delimitation. Thus, a court or tribunal facing a mixed dispute should refrain from exercising its jurisdiction over the maritime issue if its resolution is premised on the resolution of the sovereignty issue involved.     

Ocean Upwelling and International Law

Ocean upwelling pipes are used to upwell nutrient-rich deeper waters in order to fertilize the surface ocean. This article addresses whether international legal rules exist governing the deployment of ocean pipes and which states are entitled to exercise jurisdiction over these objects. Taking into account the need to avoid user conflicts and unauthorized deployment of upwelling pipes in marine areas under the jurisdiction of third states, the article advocates the development of nonbinding guidelines that would implement the general terms of the United Nations Convention on the Law of the Sea.     

The new law of the sea: Rethinking the implications for sovereign jurisdiction and freedom of action

This article examines the effects of the 1982 UN Convention on the Law of the Sea on sovereign jurisdiction and freedom of action in key sea zones covered under this Convention for coastal, noncoastal, and landlocked states pursuant to the modifications contained in the 1994 Implementation Agreement. In order to determine whether or not the treaty increases, decreases, or has no effect on state sovereign‐jurisdiction and freedom of action in the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the archipelagic regime, international straits, the high seas, and the deep seabed, the rights and duties of states set forth in this Convention are compared with those previously recognized in the 1958 Geneva Law of the Sea Conventions, state practice, and other sources of international law.     

北京地区蕨类植物区系分析

对北京地区蕨类植物区系进行了初步分析,研究表明,北京共有蕨类植物77种,隶属于19科34属,以蹄盖蕨科、岩蕨科、鳞毛蕨科、卷柏科等为优势科,以岩蕨属、卷柏属、铁角蕨属等为优势属,科内及属内分化程度较低,种类组成贫乏;地理成分以温带成分占优势,有11属为温带分布属,占非世界分布属总数的61．11％,除世界种和中国特有种外,全为温带性质的种;生境特点以石生为主,大多数种类分布在北京西部和北部的山区;与河北的关系最为密切,其次为山西、内蒙、辽宁、山东,与秦岭也有一定的联系,与西藏的关系疏远。